Patel (Migration)

[2022] AATA 3501

Patel (Migration) [2022] AATA 3501 (22 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pinkiben Tejashkumar Patel
Mr Tejashkumar Ranchhodbhai Patel

REPRESENTATIVE:  Mr Girishkumar J Patel (MARN: 1794078)

CASE NUMBER:  1907537

HOME AFFAIRS REFERENCE(S):          BCC2017/2313739

MEMBER:De-Anne Kelly

DATE:22 August 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 22 August 2022 at 1:26pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Cook – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.233, 187.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the employer nomination made by Saanjh Unit Trust trading as Jamaica Blue – Kawana was refused being the application referred to in cl.187.233(1).

6. The applicant appeared before the Tribunal on 4 August 2022 to give evidence and present arguments. Mr Tejashkumar Ranchhodhai Patel was listed as a witness at the hearing

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Evidence

9. The Tribunal explained that evidence considered was documents provided with the original application and subsequently, evidence at hearing and any information provided post hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl187.233(3) which provides as follows.

    (3) The Minister has approved the nomination.

    Nomination of a position

11. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

12. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

13. The Tribunal advised the applicant under s359AA of the Migration Act (Cwth) 1958 that when the employer nomination was refused by the delegate the employer lodged a review application with the Tribunal however on 27 June 2022, it affirmed the decision to refuse the employer nomination by Saanjh Unit Trust because it did not satisfy reg. 5.19(4)(d)(i) because the employer did not have the financial capacity to employ the nominee for at least two years full time in the position.

14. The applicant asked for an extension of time to find a new employer and understands that any repeated employer nominations cannot be linked to this visa application which is a once off application as the Tribunal advised based on the Courts finding in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (14 July 2017) by Judges Jagot, Bromberg and Mortimer JJ.

    89. The structure of reg 5.19 contemplates (whether for sub-reg (3) or (4), although (4) is the relevant sub-regulation in this appeal) that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh  at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]- [27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
    90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

15. The agent asked for an adjournment of this matter until the Federal Circuit Court makes a decision. In the written submission following the hearing the agent advised that the employer nomination review refusal was being appealed to the Federal Circuit Court and they asked that the Tribunal adjourn its decision on this visa application refusal review until the Court had made a decision.

16. In the requests for an adjournment, the Tribunal is guided by Minister for Immigration and Citizenship v Li [2013] HCA 18 [120],[122] to [124].

    [120] In holding the MRT's refusal to adjourn the review to be "unreasonable in
    the Wednesbury Corporation sense" 209, Burnett FM said [210]
    "Ultimately what appears absent in the [MRT's] decision in this instance is
    a consideration of the relative merits of the competing interests. [Ms Li's]
    agent informed the [MRT] of the outcome of the second skills assessment
    when he received it and of [Ms Li's] concerns about its efficacy. [Ms Li's]
    agent set out in detail why the decision was in error. On a plain reading of
    [Ms Li's] agent's letter there appeared good reason to be cautious of the
    assessing authority's original decision. [Ms Li's] detailed explanation of
    the reasons why the decision was wrong ought to have put the [MRT] on
    notice that this was not merely a stalling tactic on the part of [Ms Li].
    That matter was the only item outstanding in what otherwise ought to have
    been a successful application. When considered together with the
    significance of the impact of that wrong decision, I consider the [MRT's]
    decision to proceed in these circumstances rendered it unreasonable such
    as to constitute it unreasonableness in the Wednesbury Corporation sense.
    That is to say it constituted an improper exercise of the power and it went
    to the very jurisdiction."

    [122] It is difficult to disagree. Ms Li had been in Australia for some years.
    The review by the MRT had been on foot for nearly a year without any delay on
    her part. What she sought was an adjournment of the review for a highly specific
    purpose clearly articulated by her migration agent: to await the outcome of the
    review she had already sought of TRA's second skills assessment, which she
    contended to have been erroneous for reasons the migration agent explained to
    the MRT. Those reasons were, as the Minister concedes, "coherent on their face
    and might well have justified an expectation that a favourable skills assessment
    would be obtained". Indeed, the evidence before Burnett FM showed that a
    favourable skills assessment did in fact eventuate, three months later212. Nothing
    in the MRT's reasons for decision suggests that the MRT took a different view of
    Ms Li's prospects and there was no reason to infer that the MRT considered that
    the adjournment would be likely to have been unduly protracted. The MRT
    identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister.

    [123] The Minister argues that Ms Li was "entitled to expect a decision
    according to law, but not further indulgence in putting off the day of reckoning".
    Ms Li was certainly entitled to expect a decision according to law. She was also
    entitled to expect a decision according to reason. She was entitled to expect
    the MRT to be reasonable.

    [124] No reasonable tribunal, seeking to act in a way that is fair and just, and
    according to substantial justice and the merits of the case, would have refused the
    adjournment.

17. Unlike Li where the adjournment was requested for a “highly specific purpose” namely a pivotal piece of evidence that would determine whether the review was affirmed or set aside; the applicant has asked on the basis that she wishes to find a new employer and there is an apparent appeal to the Court pending. Scant evidence of an appeal has been provided such as engagement of a solicitor or grounds on which such an appeal could succeed. In fact, the agent advised they intend to introduce new evidence which was not available to the Tribunal namely the financial results for FY 2022. While it is a matter for the Court and the Tribunal cannot speculate on the outcome, it is unlikely that the Court will accept such evidence that would require the Court to make an impermissible merits review. The Tribunal considers that the applicant has sought an adjournment for an unspecified period of time which may well be protracted since these appeals to the Federal Circuit Court are taking some two to three years at present. Scant evidence of the attempt to find a new employer were provided such as advertised vacancies applied for or similar. The Tribunal does not consider that the circumstances outlined by their Honours in Liu apply to this case.

18. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

19. In Huo v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 24 May 2002) [2002] FCA 617 (15 May 2002) at [31] his Honour stated.

    As Senior Counsel for the Minister rightly contended, there was no error of law apparent or manifest in the conduct of the Tribunal below. It was under no obligation to postpone its decision-making, merely because Mr Huo wished to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet a statutory criterion found not as yet to have been fulfilled. As Senior Counsel further pointed out, Mr Huo had been in Australia since 1997, and had had more than ample time to satisfy the regulatory criteria.

20. For the reasons above the Tribunal declines the request for an indefinite adjournment pending the outcome of a proposed Court appeal or new employer and considers it is reasonable to proceed to a decision on this matter.

21. The Tribunal finds there is no approved employer nomination and as such it cannot be satisfied that cl.187.233(3) is met.

22. According, cl.187.233(3) and cl.187.233 are not met.

23. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

24. The applicant did not request the Tribunal consider a referral for Ministerial Intervention moreover it is unlikely that the applicant would meet the eligibility criteria for such a referral.

25. Mr Tejashkumar Ranchhodbhai Patel was a secondary applicant on the application for a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa and sought to satisfy cl.187.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.187.311. This clause provides as below. The secondary applicant lodged an application with the Tribunal to review the decision to refuse the Visa application.

    187.311
    The applicant:
    (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with the primary applicant.

26. The secondary applicant made a combined application with the primary applicant and applied as the partner and therefore as a member of the family unit of the primary applicant. However, the Tribunal has affirmed the decision not to grant the primary applicant, a Regional Employer Nomination (Permanent) (Class RN) subclass 187 visa. Therefore, the primary applicant is not a person who holds a subclass 187 visa. The secondary applicant is a member of the family unit of the primary applicant, who does not hold a subclass 187 visa. The secondary applicant therefore does not satisfy cl.187.311.

27. The secondary applicant does not meet cl.187.311 and the Tribunal affirms the decision not to grant the secondary applicant a subclass 187 visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    De-Anne Kelly
    Member

    
    
    

    ATTACHMENT A

    187.233(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The person who will employ the applicant is the person who made the nomination.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.